Andrew Monk, CSC Docket No. 2022-3178

BackgroundThe appeal of Andrew Monk, Laborer 1, Trenton, Department of Public Works, removal, effective May 22, 2022, on charges was heard by Administrative Law Judge Dean J. Buono (ALJ), who rendered his initial decision on August 11, 2028. Exceptions were filed on behalf of the appellant and a reply was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALJ's initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on September 20, 2023, adopted the ALJ’s Findings of Facts and Conclusions and _ his recommendation to uphold the removal.

As indicated above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds most do not require extensive comment. Nevertheless, the Commission makes the following comments. In his exceptions, the appellant argues that the charge of insubordination should not be upheld. The Commission disagrees. As found by the ALJ, the appellant admitted in the video that was posted on a social media that he refused to perform certain duties assigned to him. Further, the appellant argues that the ALJ improperly referred to a “resignation not in good standing.” While the ALJ did indicate a resignation not in good standing at the end of his discussion regarding the penalty, he properly referred to removal as the penalty in the order. As such, it is clear to the Commission that the reference to the resignation not in good standing was merely an editing error and in no way detracts from any of the ALJ’s ultimate findings or conclusion of his recommendation to uphold the removal.

Finally, the appellant argues that the ALJ did not factor into his recommendation to uphold the removal that the policy the appellant violated was not distributed to employees. The Commission is unpersuaded. Even assuming, arguendo, the accuracy of the argument, the Commission’s review of the penalty is de novo. In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant's offense, the concept of progressive discipline, and the employee’s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d (CSV) 463. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual’s disciplinary history. See Henry vu. Rahway State Prison, 81 N.J. 571 (1980). It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.J. 474 (2007).

Administrative Law JudgeIn his initial decision, the ALJ found the appellant’s infractions egregious, and upheld her removal without regard to progressive discipline. He stated:

Appellant suggests that imposing a penalty less than removal is appropriate. He asserts that there is no harm to respondent by imposing a suspension. Respondent argues that appellant’s behavior alone warrants resignation not in good standing. I agree.

AnalysisThe record reflects that appellant’s disciplinary record was not unremarkable prior to the incident that is the subject of this matter of this appeal. In fact, the prior discipline includes two prior charges of conduct unbecoming. The last of which was in December 2015 where in the recommendation in the 3la was removal. However, ultimately the case was settled for a four-month suspension. Despite appellant's significant disciplinary history, the behavior described herein certainly constitutes misconduct that is severe; that is unbecoming to the employee’s position; and that renders the employee unsuitable for continuation in the position.

The Commission agrees that the misconduct in this matter is sufficiently egregious to support the penalty of removal. Moreover, it cannot be ignored that the appellant also had a history of prior discipline. Suffice it to say, the appellant’s actions in this matter fall well short of what is expected of a public employee and the penalty imposed is neither disproportionate to the offenses nor shocking to the conscious.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore upholds that action and dismisses the appeals of Andrew Monk.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.